Fordham dealt with the law on burdens of proof in
whistleblower retaliation cases arising under modern statutes. In such cases,
the employee must first demonstrate that his or her disclosure of employer
wrongdoing contributed to the employer’s subsequent actions against the
employee. Then, the employer must prove that it would have taken the same
actions regardless of the employee’s disclosures.

In
Fordham, the statute in question was
the Federal Rail Safety Act, and the issue was whether the employer’s evidence
of a non-discriminatory reason can be considered as part of the determination
of the “contributing factor,” or whether the employer’s evidence must be
weighed for “clear and convincing” evidence that it would have taken the same
action even if no protected activity had occurred. Seemingly a purely academic
question, in fact this issue strikes at where whistleblower claims can be the
most vulnerable. Employers dwarf the whistleblower in their ability to access
documents and resources – in essence, to present evidence. This is why Congress
decided to hold employers to the higher “clear and convincing” standard.
Congress recognized that “The agency controls most of the cards—the drafting of
the documents supporting the decision, the testimony of witnesses who
participated in the decision, and the records that could document whether
similar personnel actions have been taken in other cases.” Whitmore v. Department of Labor, 680 F.3d 1353, 1367 (Fed. Cir.
2012), citing 135 Cong. Rec. H747-48 (daily ed. Mar. 21, 1989). Yet, judges
often have misapplied this standard by allowing employers to smuggle its
“independent justification” evidence into the consideration of the
whistleblower’s much lighter contributing factor standard. In Fordham, the majority held that:

only an
[employee’s] evidence may be considered at the “contributing factor” causation
stage; that the employer’s evidence in support of lawful, non-retaliatory
reasons for its action must await assessment under the ‘clear and convincing’
evidentiary standard after it is found that [the employee] has met his or her
initial burden of proof.”

at 16.

In
Powers, the employer argued for a
lesser burden. Union Pacific and its amici contended during oral argument that Fordham excludes the employer’s evidence
during the contributing factor stage, which works an injustice to employers.
This is simply not true. All that Fordham
says, and all the Congress says, is that the judge must hold the employer’s
evidence to the heightened clear and convincing standard whenever he or she
considers that evidence. Employers may indeed present relevant evidence at any
stage – for example, rebuttal evidence to the employee’s contributing factor
evidence. However, the judge must be scrupulous in holding that rebuttal
evidence to the clear and convincing standard of proof. To do otherwise would
vitiate the value of having the two different standards of proof. Congress deliberately
subjected employers to a higher standard in direct recognition of the
usefulness of whistleblowers and their disclosures about dangers to the public.
The Board in Powers should uphold the
congressional intent and its correct holding in Fordham.